Fire Captains' Duties Don't Extinguish Overtime Rights

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By Jon Steingart

June 22 — Captains for a Virginia county fire department aren't exempt from overtime because their primary duty is responding to emergency calls, not managing others, a federal appeals court ruled ( Morrison v. Cty. of Fairfax , 2016 BL 197902, 4th Cir., No. 14-2308, 6/21/16 ).

“The court adopted a bright line test that if an employee is primarily a first responder that employee is nonexempt, regardless of the management duties the employee has,” Molly Elkin, an attorney for the captains, told Bloomberg BNA June 22.

The Fairfax County Fire Department captains perform tasks such as evaluating team members' performance and administering discipline determined by higher-ranking officials, Judge Stephanie D. Thacker wrote for the U.S. Court of Appeals for the Fourth Circuit, joined by judges William B. Traxler and Pamela A. Harris.

But the captains spend only a fraction of their time on those tasks, Thacker said. The “major emphasis” of their jobs isn't exempt from the Fair Labor Standards Act's overtime requirement, she said, reversing summary judgment to the county and awarding it to the captains.

One Regulation Doesn't Displace Another, Court Says

An FLSA rule known as the first responder regulation says firefighters are excluded from the overtime exemption for management employees.

But this doesn't render inapplicable another FLSA regulation known as the primary duties test, Thacker said. The primary duty test includes factors for determining whether an employee's primary duty is management.

The DOL adopted the first responder regulation in 2004. This is the first case the Fourth Circuit has decided that interprets it, Elkin said.

DOL Brief Backed Captains

The Labor Department filed a brief and appeared at oral argument at the court's request.

It supported the captains' contention that first responder regulation incorporates a primary duty inquiry but urged the court to submit the case to a jury to determine the captains' primary job duty, Elkin said.

A DOL spokeswoman declined to comment June 22.

The first responder regulation is entitled to the Fourth Circuit's deference because there is nothing “to suggest that it does not reflect the agency’s fair and considered judgment,” Thacker said. In reaching this conclusion, the appeals court joined the Second Circuit, she said.

An attorney for the fire department didn't respond to requests for comment.

Woodley & McGillivary LLP represented the captains. Hunton & Williams LLP represented the fire department. Attorneys from the Solicitor of Labor's office represented the DOL.

To contact the reporter on this story: Jon Steingart in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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